Felon in Possession of a Firearm Case DISMISSED
North Carolina Gun Charge Dismissed
Sometimes it takes a while to get the prosecutors to see the weakness in their case. After all, they are used to most people pleading guilty! After two years of delays, and on the eve of a hearing on our Motion to Suppress Evidence (based upon a search warrant that was issued because the cops thought they saw marijuana in the client's home) the prosecutor finally took a good look at the case. Concluding that they would likely lose the motion to suppress, and even if they did prevail in that they would likely lose at trial, they did the right thing and dismissed the felony charge. This decision was also assisted by the case law and analysis we provided regarding the issue of constructive possession in the context of a gun that was found at our client's home during a search while they were not home.
Motion to Suppress under North Carolina Law
We filed a motion to suppress evidence over 18 months ago, requesting that the court suppress any and all evidence discovered during service of a search warrant that the cops obtained based upon the odor and appearance of "marijuana" in client's home. The cops smelled and saw the substance during a "knock and talk" investigation based upon an anonymous tip that drugs were being sold from client's home (this was not true, for what that's worth). Our motion asserted that illegal cannabis ("marijuana") is indistinguishable from legal industrial hemp, and the cops' observations were insufficient to support a finding that probable cause existed to search the home.
Constructive Possession under North Carolina Law
The prosecutor's decision to dismiss was also aided by case law analysis we provided regarding "constructive possession." When a defendant is not found in possession of the gun (or other contraband) the state can still seek criminal charges under a theory that they had constructive possession over the item- essentially that they exercised dominion and control over it. However, North Carolina courts have repeatedly held that when the item is found in an area where the defendant does not have exclusive control, other incriminating circumstances are required to establish constructive possession. Examples of incriminating circumstances establishing constructive possession would be fingerprints on the gun, evidence that the gun was purchased by the defendant, pictures of the defendant holding the gun, testimony that it was their gun, etc. In this case, the prosecution would have been hard pressed to establish any such facts.
Take Your Defense Seriously
Serious criminal charges require serious representation. Attorney Sean Cecil has significant experience and success litigating North Carolina state and federal criminal charges, and is available for consultation and representation. Initial consultations are always free! Use the contact form or call 919-828-1456 x5 to schedule a time to discuss your matter.
Practice area(s): Criminal Defense
Court: Wake County Superior Court